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STANLEY F. ZIEMBA v. COMMONWEALTH PENNSYLVANIA (01/02/75)

decided: January 2, 1975.

STANLEY F. ZIEMBA, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Stanley Ziemba, No. B-117695.

COUNSEL

Paul L. Zeigler, with him Goldberg, Evans & Katzman, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 16 Pa. Commw. Page 617]

We are faced with this question. Can a federal employee who has received a total disability retirement pension from the federal government still be "able" and "available for suitable work" within the meaning of Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d) and thus be simultaneously entitled to unemployment compensation?

Stanley F. Ziemba (Claimant) was last employed as a field revenue officer by the Internal Revenue Service, on duty since 1951. His job entailed driving approximately 2,500 miles per month while he performed field audits and administrative functions in a three county area of assignment. He stopped working on or about September 5, 1972, and took sick leave for a medical condition eventually diagnosed as labyrenthitis. This condition of the inner ear disturbed his equilibrium and resulted in intermittent fainting spells, double vision and nervousness which substantially interfered with his field duties. On the advice of his physician and after having depleted all sick leave available to him, Claimant resigned from the Internal Revenue Service on October 27, 1972. He thereafter applied for and was granted a federal disability retirement annuity, effective November 24, 1972.

On November 12, 1973, Claimant applied for unemployment compensation. The Bureau of Employment Security thereafter determined that Claimant had not filed a valid application under Section 4(W)(1), 43 P.S. § 753(W)(1) because he was not then able and available

[ 16 Pa. Commw. Page 618]

    for suitable work as required by Section 401(d).*fn1 The Bureau found that Claimant was subject to black-outs which interfered with his ability to drive to and from any kind of work. The referee and the Unemployment Compensation Board of Review (Board) agreed in essence with this finding, and denied benefits. The referee, after a brief hearing, reasoned:

"Claimant retired from the Federal Government on a disability which would prevent him from working. Claimant cannot on the other hand state that at the time the disability termination became permanent he was able and available for full time work. This is an inconsistent position and the Referee is constrained to rule that as claimant is presently receiving or due to receive a disability annuity from the Federal Government he is not able and available for work. Accordingly, claimant does not meet the eligibility requirements of Section 401(d) of the Law, and his application for benefits must be ruled invalid within the meaning of Section 401(c) as defined in Section 4(W)(1) of the Law."

From the Board's summary disallowance of his appeal, Claimant comes before this Court. In appeals of this nature, our review is essentially limited to questions of law, and, absent fraud, a determination of whether the findings of fact relied upon by the Board are supported by the evidence. Homony v. Unemployment Compensation Board of Review, 11 Pa. Commonwealth Ct. 142, 312 A.2d 77 (1973). Questions of credibility and the weight to be ...


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